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been exhausted, out of moneys subsequently furnished by parties who
took from the company a special lien upon the rents and profits of the
section so constructed with their money. Thompson v. White Water
Valley Railroad Co., 68.

See Local Law, 2, 3, 4.

MOTION FOR NEW TRIAL.

See JURISDICTION, A, 5.

MOTION TO DISMISS OR AFFIRM.
1. There is color for a motion to dismiss a writ of error to a state court

for want of jurisdiction if it appear that no Federal question was
raised on the trial of the case, but that it was made for the first time
in the highest appellate court of the State sitting to review the

decision of the case in the trial court. Sugg v. Thornton, 524.
2. Plaintiffs sued defendant in a state court in Texas to recover $5970,

the alleged value of goods destroyed by a fire charged to have been
caused by defendant's negligence. Defendant pleaded and excepted
to the petition. The cause was then removed to the Circuit Court of
the United States on defendant's motion, who there answered further,
pleading the general issue, excepting to the petition among other
things for insufficiency and vagueness in the description of the goods,
and charging contributory negligence on plaintiffs' part. Plaintiffs
filed an amended petition more precise in statement and reducing
the damage claimed to $4656.71. To this defendant answered, again
charging contributory negligence and setting up, "by way of set-off,
counterclaim and reconvention,” injuries to himself to the extent of
$8000, resulting from plaintiffs' negligence, for which he asked judg-
ment. Plaintiffs excepted to the cross-demand. On the 6th October,
1888, the cause coming to trial, defendant's exceptions were overruled,
except the one for vagueness, and as to that plaintiffs were allowed
to amend; plaintiffs' exceptions to the counterclaim were sustained;
and the jury rendered a verdict for $1300 principal, and $792.15
interest. It appeared by the record that plaintiffs on the same day
remitted $135.50, and judgment was entered for $1656.65; but it
further appeared that on the 8th October, plaintiffs moved for leave
to remit that amount of the judgment and leave was granted the
remittitur to be as of the day of the rendition of the judgment, and
the judgment to be for $1656.65 and costs. On the same 8th of
October, defendant filed a bill of exceptions in the cause “signed and
filed herein and made a part of the record in this cause this 8th day
of October, 1888.” On the 9th October, a motion for a new trial was
overruled. On a motion to dismiss the writ of error or to affirm the
judgment, Held, (1) That the remittitur was properly made, and
that it was within the power of the Circuit Court to order it as it was
ordered; (2) That if no other question were raised in the case, the

motion to dismiss would be granted; (3) That the counterclaim,
being founded on a cause of action arising out of, or incident to; or
connected with the plaintiffs' cause of action," was properly set up,
and conferred upon this court jurisdiction to examine further into the
case; (4) That the plaintiffs'exception to the counterclaim was properly
sustained; (5) That if the counterclaim could be maintained, a recov-
ery could be had only for damages which were the natural and proxi-
mate consequences of the act complained of; (6) That the defendant's
exceptions to the charge of the court having been taken two days after
the return of the verdict, were taken too late; (7) That the facts
furnished ground for maintaining that the counterclaim was set up
only for the purpose of giving jurisdiction to this court; (8) But
whether that were so or not, the judgment ought to be affirmed on the
case made. Pacific Express Co. v. Malin, 531.

MUNICIPAL CORPORATION.
1. The negotiable security of a municipal corporation, invalid in the hands

of the original holder by reason of an irregularity in its issue to which
he was a party, but which becomes valid in the hands of an innocent
purchaser for value without knowledge or notice of the irregularity,
remains valid when acquired by another purchaser for value, who was
no party to the irregularity, but who, at the time of his purchase, has
knowledge of the infirmity, and of a pending suit against the original
holder and others to have the whole issue declared invalid by reason

thereof. Scotland County v. Hill, 107.
2. The litigations respecting the Scotland County bonds in the state courts

and in the courts of the United States reviewed. 1b.
3. In the absence of a provision to the contrary, overdue coupons on bonds

of a municipal corporation bear interest at the legal rate in the place

where they are payable. , 1b.
4. In Ohio it is the duty of a municipal corporation to keep the streets of

the municipality in order; and a person receiving injuries in conse-
quence of its neglect so to do, has a right of action at the common law

for the damage caused thereby. Cleveland v. King, 295.
5. A building-permit by municipal authorities authorizing the occupation

of part of a public street as a depository for building materials, and
requiring proper lights at night to indicate their locality, does not
relieve the municipality from the duty of exercising a reasonable dili-
gence to prevent the holders of the permit from occupying the street

in such a way as to endanger passers-by in their proper use of it. 16.
6. It is settled law that a municipality has no power to issue its bonds in

aid of a railroad, except by legislative permission. Young v. Clar-

endon Township, 340.
7. The legislature in granting permission to a municipality to issue its

bonds in aid of a railroad may impose such conditions as it may
choose. Ib.

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8. Where authority is granted to a municipality to aid a railroad and

incur a debt in extending such aid, that power does not carry with it
authority to execute negotiable bonds except subject to the restrictions

and directions of the enabling act. 16.
9. The act of the legislature of Michigan of March 22, 1869, “ to enable

any township, city or village to pledge its aid by loan or donation to
any railroad company, etc.," provided that the bonds when “issued”
should be “delivered by the person

having charge of the
same to the treasurer of this State ;” that the treasurer should “hold
the same as a trustee for the municipality issuing the same and for
the railroad company for which they were issued;" that whenever the
railroad company should “present to said treasurer a certificate from
the governor of this State that such railroad company has in all
respects complied with the provisions of this act ... such of
said bonds as said company shall be entitled to receive shall be deliv-
ered to said company;” that the treasurer should endorse upon each
bond delivered the date of its delivery and to whom it was delivered;
and that in case the bonds were not demanded in compliance with the
terms of the act within three years from the date of delivery to the
treasurer, “ the same shall be cancelled by said treasurer and returned
to the proper officers of the township or city issuing the same.” The
township of Clarendon, in Michigan, having complied with the require-
ments of the act on its part, delivered to the state treasurer its bonds
to the amount of $10,000, dated July, 1869, for the benefit of the
Michigan Air Line Railroad Company. The company completed its
railroad before February, 1871, and became entitled to the governor's
certificate under the act; but on May 26, 1870, the Supreme Court
of the State had declared the act to be unconstitutional, and the
governor in consequence thereof refused to give the certificate. On
the 28th May, 1872, before the expiration of three years from their
delivery, the treasurer returned the bonds to the township. November
12, 1884, the appellant obtained judgment against the railroad com-
pany and an execution was issued, which was returned nulla bona.
On the 24th February, 1885, he filed a bill in equity against the town-
ship and the company, claiming that the township was equitably
indebted to the company to the amount of the bonds and coupons
with interest, and that he was entitled to receive the amount of that
indebtedness, and to apply it on his judgment debt; Held, (1) that
the municipal authorities had no power to deliver the bonds, after
their execution, except to the state treasurer, and that the word
“deliver" as used in the statute with reference to this act, was used
in its ordinary and popular sense, and not in its technical sense;
(2) that to the governor alone was given the power to determine
whether the bonds should ever in fact issue, and, if issued, when they
should issue; (3) that the endorsement by the treasurer upon each
bond of the date of its delivery and of the person to whom it was

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delivered, was necessary to make it a completed bond and that this
could not be done until the governor's authorization was made;
(4) that as the bonds were never endorsed and delivered by the
treasurer they never became operative; (5) that the rules in regard
to escrows could not be applied to these instruments because they
were never executed in compliance with the peremptory requirements
of the statute; (6) that if the railroad company had any cause of
action against the township by reason of these facts, it was barred by
the statute of limitations of the State of Michigan; (7) that there was
no equitable reason why the bar at law should not be set up and
maintained in equity. 1b.

See DistrICT OF COLUMBIA, 1, 2;

LIMITATION STATUTES OF, 1, 2;
MANDAMUS.

NATIONAL BANK.

1. The exemption of national banks from suits in state courts in counties

other than the county or city in which the association was located,
granted by the act of February 18, 1875, 18 Stat. 316, c. 80, was a
personal privilege which could be waived by appearing to such a suit
brought in another county, but in a court of the same dignity, and
making defence without claiming the immunity granted by Congress.

Charlotte First National Bank v. Morgan, 141.
2. The provision in the act of July 12, 1882, 22 Stat. 163, c. 290, $ 4,

respecting suits by or against national banks, refers only to suits

brought after the passage of that act. 16.
3. A national bank was sued to recover interest alleged to have been

usuriously exacted. The complaint which was sworn to January
13, 1883, charged that the usurious transactions took place "after the
12th day of February, 1877, and before the commencement of this
action, to wit: on the 25th day of May, 1878, and at other times and
dates subsequent thereto." The defendant answered generally and
set up the statute of limitations. The jury found that usurious inter-
est had been taken during the two years next before the commence-
ment of the action, and rendered a verdict for plaintiff on which
judgment was entered.' The defendant moved in arrest of judgment,
and also for a new trial, on the ground of a variance between the
pleadings and proof; Held, that, although the complaint might have
been more specific, enough was alleged to sustain the judgment. 16.

See CRIMINAL LAW, 1;

JURISDICTION, C.

NEGOTIABLE SECURITY.
See MUNICIPAL CORPORATION, 1, 3.

NUISANCE.
See LIMITATION, STATUTES OF, 1.

PARTNERSHIP.
1. In the absence of written stipulations or other evidence showing a

different intention, partners will be held to share equally both profits
and losses; but it is competent for them to determine, as between
themselves, the basis upon which profits shall be divided and losses
borne, without regard to their respective contributions, whether of

money, labor, or experience to the common stock. Paul v. Cullum, 539.
2. L. and W., the owners of a stock of goods, made a written agreement

with H. reciting that the latter was “ taken into partnership,” that the
stock should be inventoried and delivered to H. “as a capital stock"
" to be sold with his entire direction and supervision under the name"
of the L. and W. Company; that a new set of books should be opened,
showing the business of the new firm; that the profits and losses
should be shared in the proportion of eight-tenths for L. and W. and
of two-tenths for H.; and that the “partnership” should pertain only
to merchandising and have no connection with any outside business
L. and W. might have jointly or separately. After this agreement
was made, L. constituted H. his attorney in fact, with power “to
bargain, and agree for, buy, sell, mortgage, hypothecate and in any
and every way and manner deal in and with goods, wares and mer-
chandise, choses in action, and other property in possession, or in
action, and to make, do and transact all and every kind of business
of what nature and kind soever, and also, for me and in my name,
and as my act and deed, to sign, seal, execute, deliver and acknowl-
edge such deeds, covenants, indentures, agreements, mortgages, hypoth-
ecations, bottomries, charter parties, bills of lading, bills, bonds, notes,
receipts, evidences of debt, releases and satisfactions of mortgage,
judgment, and other debts, and such other instruments in writing of
whatever kind and nature as may be necessary or proper in the
premises;Held, (1) That by this agreement L., W. and H. became
partners and as between themselves established a community of prop-
erty as well as of profits and losses in respect to said goods and the
business of the L. and W. Company; (2) That in the absence of
L. this power of attorney authorized H. to represent him in a general
assignment of the property of the L. and W. Company for the benefit
of its creditors. Ib.

See CONSTITUTIONAL LAW, A, 10.

PATENT FOR INVENTION.
1. Claims 1, 3, 5 and 6 of reissued letters patent No. 8718, granted May

20, 1879, to Charles F. Brush for improvements in electric lamps,"
the original patent, No. 203,411, having been granted to said Brush
May 7, 1878, are invalid by reason of their prior existence as perfected

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